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HomeMy WebLinkAboutItem IPLAN COMMISSION STAFF REPORT OCTOBER 16, 2018 ITEM I: ACCEPT STORM SEWER EASEMENT AT 1925 SMELTER COURT GENERAL INFORMATION Applicant: City of Oshkosh Owners: Oshkosh Area Humane Society The City of Oshkosh is requesting the acceptance of a storm sewer easement on the west side of the subject property. Applicable Ordinance Provisions: N/A Property Location and Background Information: The subject site is located at the southwest end of Shelter Court, west of Bowen Street. The proposed easement is located on the west side of the Oshkosh Area Humane Society Property, adjacent to (east of) the Canadian National Railroad right-of-way. ANALYSIS The City is requesting acceptance of a 30-foot wide storm sewer easement for a 65" X 40" concrete pipe that was installed in 1994. The easement will run north to south along,the west property line, connecting with existing storm sewer easements on the adjacent properties. A council resolution from 1988 passed the acceptance of storm sewer easements from a number of properties adjacent to the railroad for drainage. Easements were entered into shortly after the resolution and storm sewer was then installed. All of the properties included in the resolution had easement documents recorded, except for Oshkosh Area Humane Society. To remedy this oversight, the Department of Public Works is requesting to draft and record an easement to ensure that the City has legal rights to perform any potential future repairs or replacement of the storm sewer. The City Attorney has already prepared appropriate easement documents to be signed by the owner. The easement will then be recorded at the Winnebago County Register of Deeds pending Common Council approval. RECOMMENDATION/CONDITIONS Staff recommends approval of the acceptance of the proposed storm sewer easement at 1925 Shelter Court as requested. F (J O F C ss DOCTORS CT U W a w x Ln cn STORM SEWER EASEMENT 00 04 W. MURDOCK AVE CITY OF OSHKOSH ENGINEERING DIVISION STORM SEWER EASEMENT FILE NAME: DRAWN: 1925SHELTE 9.27_2018 1925 SHELTER COURT Storm Easeementent GRAPHIC SCALE: 0 100 200 r Feet 1 INCH = 150 FEET 2 Document Number I -Document Title THIS Agreement is made this day of 12018, by and between the Oshkosh Area humane Society, Inc., Grantor, and City Oshkosh, Grantee, PURPOSE: The City passed Resolution #510 on April 7, 1988 in which it accepted storm water drainage easements from the owners of a number of properties adjacent to what was then known as the Chicago and North Western Railroad right-of-way, and extending north from the Recording Area railroad's intersection with Murdock Avenue. Shortly thereafter, Name and Return Address easement agreements were entered into with property owners, and a City Attorney's Office large storm water main was installed throughout easements across the P.O. Box 1130 properties subject to the April 7, 1988 Resolution. Despite the formal 1 Oshkosh, WI 54903-1130 City Council actions, and despite the actual construction of the storm water main in the late 1980's, a formal Easement Agreement has not 91519370401 been located by either party for the Property now owned by the Parcel Identification Number (PIN) Humane Society. The City and the Humane Society both seek to memorialize the Easement, and the actions taken by both the City and the previous property owner in the past, to improve storm water drainage and management in the particular area and in this party of the City served by this storm water main by maintaining sufficient storm water drainage over the Easement. EASEMENT: The Humane Society, its successors and assigns, gives and grants to the City, and the City accepts, an Easement over, under, and through the Easement Property described in this Easement Agreement. The Easement may be used for all purposes related to the City's storm water management system. CONSIDERATION: The parties enter into this Agreement for the sum of One and NO/100 dollars ($1.00) and other good and valuable consideration, the receipt and sufficiency of which is acknowledged. The City and Humane Society receive the benefit of improvements to storm water drainage and management in and around the Easement Property. 4. EASEMENT PROPERTY: The Easement allowing the City to install, operate, and maintain public storm water management facilities shall be over, under, and through a part of the Humane Society's property in the City of Oshkosh, Winnebago County, Wisconsin, (`Easement Property"), is described below. Part of the Southwest'/4 of the Southeast'/4 of Section 12, Township 18 North, Range 16 East, Fifteenth Ward, City of Oshkosh, Winnebago County, Wisconsin, and described as: A strip of land with a uniform width of thirty (30) feet east of the following described line: Commencing at the intersecting point of the north right-of-way line of Murdock Avenue and the east line of the Fox Valley & Western, Ltd, railroad right-of-way (formerly the Chicago & Northwestern Railroad), thence northerly along the east right-of-way line a distance of 655.2 feet to the point of beginning: thence continuing northerly along the east right-of-way line a distance of 333.71 feet to the north property line. LOCATION: A locational map of the Easement Property is attached as Exhibit A. 6. ACCESS RIGHTS: The City shall have the right to access and use the Easement Property for all purposes related to its storm water management system. 26, 2018 3 USE FOR STORM WATER MANAGEMENT SYSTEM: The City will use the Easement Property for an underground storm sewer pipe and appurtenances including surface -level manhole lids, as well as a swale when appropriate at the discretion of the City. The City shall have the right to fully use the Easement Property for these purposes as part of its storm water management system. The City shall have the right to access, survey, lay, construct, use, operate, maintain, repair, replace, relocate, and/or remove storm water sewers and/or storm water drainage facilities. MAINTENANCE: The City shall be responsible for maintenance, repair, and replacement of all storm water drainage facilities on and within the Easement Property. The City shall be responsible for grading and reseeding grass on the Easement Property when the surface is disturbed because of the City's actions. Restoration includes grading and seeding, repairs of erosion, and regrading when necessary. The City's maintenance of its storm water facilities shall be at the City's sole discretion. The City's goal is to take reasonable actions to ensure that the public storm water facilities within the Easement Property reasonably function according to their design. The Humane Society shall not perform any maintenance on any underground facilities. Unless the Humane Society receives permission from the City, the Humane Society shall not perform any repairs or maintenance on the City's surface level facilities within the Easement Property, except to the extent that they may mow a swale or clean out debris covering an inlet, if applicable. The Humane Society is otherwise responsible for regular maintenance the surface of the Easement Property. INTERFERENCE WITH EASEMENT: The Humane Society, its successors in interest, heirs, agents, or assigns, shall not interfere with the City's use of the Easement Property, or install or construct any structures or improvements, landscaping or otherwise, within the Easement Property. The Humane Society shall not place, pile, or move snow or ice onto the Easement Property. Prohibited new structures or improvements include, but are not limited to, temporary or permanent buildings, driveways, parking areas, sheds, change in elevations, vegetation except grass, landscaping or fences. The Humane Society shall promptly remove any objects, materials, or structures which impede the City's use of the Easement Property or limits the functioning of the City's storm water drainage system as it is designed. If the Humane Society fails to remove these materials or objects interfering with the Easement, the City may remove them at the Humane Society's expense. The City's storm water facilities to be installed within the Easement Property are significant and important to the City's overall storm water management system. Therefore, Humane Society shall notify and consult with the City before entering into any subsequent easements with other parties that include the Easement Property. The City shall review such future plans in good faith, but reserves the right to object and prevent other easements on the Easement Property if the proposed easement will materially or adversely affect the operation and/or maintenance of the City's facilities as designed. The parties agree that a material increase of the cost of operation or maintenance of the City's facilities will be an allowed reason to object to prevent subsequent easements on the Easement Property. The Humane Society may request that the Board of Public Works approve surface uses such as landscaping, driveways, and parking within the Easement Property. In the event that the Board of Public Works approves such additional improvements, the City's shall not be responsible for restoring the additional improvements and the City shall remain obligated only to grade and seed grass after the disturbance of the surface. 10. USE OF EASEMENT BY OTHERS: The Humane Society agrees that the City may temporarily assign its right to access and use the Easement Property to any contractor, third party, or other assignee that will be performing work within the Easement Property for purposes allowed by the terms of this Easement. The City shall take reasonable steps to ensure that its contractor, third party, or assignee has sufficient competence and gives adequate assurances that any work to be performed in or around the Easement Property shall be conducted in a skillful manner, and that Humane Society's interest in the Easement Property shall be protected to the same extent as if the City was itself performing the construction and maintenance. 11. DEFAULT: If either the Humane Society or the City reasonably believe that the terms of this Easement Agreement have been breached, then written notification of the alleged breach shall be delivered to the other party. Any party in breach shall have thirty (30) days to cure any actual breach. However, the City may take immediate action when it reasonably believes that the alleged breach will materially interfere with the design of its facilities within the Easement Property. 12. TERM: This Easement is being granted in perpetuity for public purposes and uses, both current and future, without regard to the City's use of the Easement Property at any particular time. All rights, title and privileges herein granted, including benefits and burdens, shall run with the land and shall be binding upon and inure to the benefit of the Humane Society and the City, their respective heirs, executors, administrators, successors, assigns, and legal representatives. 2 September 26, 2018 al 13. EXISTING EASEMENTS: Humane Society and the City are not aware of any recorded Easements which relate to or affect the Easement Property. 14. WAIVER: No delay or omission by any party to this Easement Agreement in exercising any right or power arising out of any default under any of the terms or conditions of this Agreement shall be construed as a waiver of the right or power. 15. INVALIDITY: If any term or condition of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall not be affected by such determination, and each term and condition shall continue to be valid and enforceable to the fullest extent permitted by law. 16. NO THIRD PARTY BENEFICIARY: The terms of this Agreement are for the benefit of the two parties identified, and it is not the intention of either the Humane Society or the City that other persons or entities shall acquire any rights to enforce or benefit from this Agreement. 17. MUNICIPAL LIABILITY: Nothing in this Agreement is intended as a waiver of the municipality's right or opportunity to rely upon the municipal limitations and immunities contained within Wisconsin law. Municipal immunities and limitations include, but are not limited to, Sections 345.05, 893.80, and 893.83, Wisconsin Statutes. Damage limits, caps and immunities found in Wisconsin law are intended to be preserved and are incorporated into this Agreement and shall govern all disputes, whether arising through the terms of this Agreement or otherwise, to the extent that the claims, liabilities, or damages apply to the municipality and its agents, officers, and employees. 18. GOVERNING LAW: This Agreement shall be construed and enforced in accordance with the laws of the State of Wisconsin. Venue for any action regarding this Agreement shall be the Winnebago County, Wisconsin, Circuit Court or, if a federal court action, then the appropriate district and/or branch within which Winnebago County is located. 19. NOTICES: Any notices required by this Easement Agreement shall be in writing and delivered via certified mail, return receipt requested, to the following addresses. Changes to these addresses shall be in writing. In addition to formal notification, both parties agree to take reasonable measures to keep the other party informed of issues or questions regarding the Easement Property. FOR THE GRANTOR: Oshkosh Area Humane Society, Inc. Attn: Executive Director 1925 Shelter Ct. Oshkosh, WI 54901 IIM1110 1 so1061 71104I111 City of Oshkosh c/o Director of Public Works P.O. Box 1130 Oshkosh, WI 54903-1130 20. AUTHORITY: The City affirms that all necessary boards, commissions, and elected officials have approved the acceptance of this Easement and the terms of this Easement Agreement, and that the undersigned have the authority to sign this Agreement on behalf of the Grantee. Humane Society affirms that it has the authority without limitation to grant this Easement and to enter into this Easement Agreement and that the undersigned have the authority to sign this Agreement on behalf of the Grantor. SIGNATURE PAGES FOLLOW This instrument drafted by: Attorney David J. Praska Deputy City Attorney Oshkosh, WI 54903-1130 3 September 26, 2018 5 a ME City of Oshkosh maps and data are intended to be used for general identification purposes only, and the City of Oshkosh assumes no liability for the accuracy of the information. Those using the information are responsible for verifying accuracy. For full disclaimer please go to www.ci.oshkosh.wi.us/GlSdisclaimer 0 N 1 in=0.03mi 1in=150ft Printing Date: 10/1/2018 Prepared by: City of Oshkosh, WI O N 414 EON o _T o" Ad shk .slh JAGISRanning0an Commission Site Plan Map TemplatelPlan Commission Site Plan Map Template.mxd User: minak 6 J:\CIS\Flanning\Flan Commission Site flan Map lemplaV'lan Commission Site flan Map lemplate.mxd User: minak Oshkosh J:\GIS\Planning\Plan Commission Site Plan Map Template\Plan Commission Site Plan Map Template.mxd User: minak i